Is it Open Season on Prenuptial Agreements?

In its February 20, 2013 decision in Cioffi-Petrakis v. Petrakis, the Second Department affirmed the decision of former Nassau County Supreme Court Justice Anthony J. Falanga which set aside the parties’ prenuptial agreement. Indeed, decisions over the past year indicate that there may be a pendulum swinging towards easing the burden on the party (generally, the wife) attacking such agreements.

In Cioffi-Petrakis, the wife contended that her husband had reneged on his oral promise to tear up their prenuptial agreement once she had children made shortly before the pre-nuptial agreements’s execution (the parties now have two sons and a daughter). That promise was not referenced in the parties’ written agreement entered just four days before the parties’ marriage. Moreover, the parties had disclaimed reliance upon oral statements by either party, a relatively standard provision in the agreement, itself. Nevertheless, the Second Department agreed with Justice Falanga that the evidence supported the wife’s claim that she had been fraudulently induced to accept the deal.

Ironically, three years earlier (72 A.D.3d 868, 898 N.Y.S.2d 861), the Second Department affirmed Justice Falanga’s prior order dismissing the wife’s causes of action which attacked the very same agreement on the grounds of unconscionability. There, the Second Department was satisfied with the record’s demonstration that the wife was represented by independent counsel during the prenuptial agreement negotiations (her counsel signed the agreement as a witness). Moreover, the agreement itself recited that the wife entered into it “freely, voluntarily and with full knowledge of all circumstances having a bearing on this agreement.” At that time, the Second Department opined that the wife was provided with meaningful bargained-for benefits, including a one-third interest in one of the defendant’s businesses. The wife had advanced nothing but conclusory and unsubstantiated assertions insufficient to defeat the husband’s motion for summary judgment dismissing the cause of action to set aside the parties’ prenuptial agreement on the ground of unconscionability.

In its March 20, 2012 decision in Rabinovich v Shevchenko, 93 A.D.3d 774, 941 N.Y.S.2d 173, the Second Department agreed with that part of the decision of Suffolk County Supreme Court Justice Donald R. Blydenburgh which held the parties’ prenuptial agreement was invalid. There, the prenuptial agreement was presented to the wife just before the marriage ceremony, it was drafted in English (a language which she did not, at that time, understand), and the wife did not have the opportunity to have the agreement reviewed by an attorney or translated into her native language before she signed it.

ockland County Supreme Court Justice Victor J. Alfieri, Jr., invalidated the parties prenuptial agreement in his September 18, 2012 decision in A.N. v E.N. The wife had no input in negotiating the terms of the agreement, or in its preparation. The wife was not represented by counsel at any time during the drafting of the agreement, or at the time of its execution. The prenuptial agreement left the wife with absolutely nothing. There was no bargained-for benefit. Moreover, the terms of the agreement the wife actually signed were very different from the terms of the agreement she thought she was signing.

While it may be still very difficult to successfully attack a marital agreement entered only after there has been full financial disclosure and with each party having independent counsel, there does appear to be a contrary trend here.

I suspect it depends in part on what is in the contract, not just how it was entered. If it gets around the law but still looks too unfair, judges are human and will do what they want. If you write a prenup, make sure it is fair to both sides, and that you draft it at the time of proposal, not days before the wedding.

I’m pretty sure the first judge scrapped the soundly written prenup because it became unfair after kids entered the equation. Had it accounted for those and been fair there, it would have survived.

Even if a contract is fair, if a judge sees something else unfair, the judge might rule differently on the contract to right the other unfairness. Hopefully these cases are unpublished so as to not set presidents … although the listings after them look like they might be published. Oh well.

Aaron Solt

I suspect it depends in part on what is in the contract, not just how it was entered. If it gets around the law but still looks too unfair, judges are human and will do what they want. If you write a prenup, make sure it is fair to both sides, and that you draft it at the time of proposal, not days before the wedding.

I’m pretty sure the first judge scrapped the soundly written prenup because it became unfair after kids entered the equation. Had it accounted for those and been fair there, it would have survived.

Even if a contract is fair, if a judge sees something else unfair, the judge might rule differently on the contract to right the other unfairness. Hopefully these cases are unpublished so as to not set presidents … although the listings after them look like they might be published. Oh well.

Search…

About Neil Cahn

Blog Editor

A graduate of Yale College and a Law Review graduate of the Hofstra University School of Law, Neil Cahn has practiced law on Long Island for more than 40 years.

About the Practice

Mr. Cahn’s practice is concentrated in the areas of family and commercial “divorce” and estate litigation, arbitration, lawyer-assisted mediation and Collaborative Law.

As to family law matters, the practice includes divorces, themselves, as well as custody and visitation, child and spousal support, and post-divorce matters, and domestic violence and family offense proceedings, in both the Supreme and Family Courts.